The Worrisome Future of Abortion Rights

Sheriff Joe Arpaio used to require pregnant inmates in the Arizona jails he controlled to get a court order before being allowed out of their cells to obtain a desired abortion. Needless to say, he was sued, and needless to say, he lost. (The sheriff appealed to the Supreme Court, which refused to hear the case.) So he switched tactics to require any inmate who wanted an abortion to prepay the transportation and security costs, something not required for any other off-site medical procedure. The American Civil Liberties Union took the sheriff back to court and won again.

That seemed to be that. Following President Trump’s pardon of Mr. Arpaio three months ago for an unrelated contempt of court conviction, the 85-year-old former sheriff, a right-wing hero for his years of abusing immigrants, seemed finally about to fade from the scene.

But guess what? It turns out that we’re all living in Sheriff Joe country now.

I’m referring to the deeply disturbing events of the past few weeks as the Trump administration pulled out all the stops to keep a pregnant 17-year-old, an “unaccompanied minor” in federal custody as an undocumented immigrant, from exercising her constitutional right to an abortion. The administration persisted even after a Texas judge ruled in September that the girl was sufficiently mature to make her own decision about her pregnancy. Known in court papers only as Jane Doe, she finally got her abortion on Oct. 25, thanks to a 6-to-3 ruling by the federal appeals court in Washington, D.C. The abortion came after weeks of delay, after Jane Doe was forced to attend a counseling session at an anti-abortion “crisis pregnancy center” and as the pregnancy was approaching the 20-week limit for a legal abortion in Texas. The teenager is being held in Texas in a shelter run by a private contractor for the Department of Health and Human Services.

Refusing to give up even after Jane Doe’s abortion, Solicitor General Noel J. Francisco now wants to make sure the Trump administration can deter other pregnant teenagers in federal custody from terminating their pregnancies. Last week, he filed a wildly improbable Supreme Court appeal, asking the justices to vacate as moot the appeals court’s decision and, while they’re at it, to impose sanctions on Jane Doe’s A.C.L.U. attorneys for getting their client her abortion before the Trump administration could run to the Supreme Court with an emergency appeal. That’s a bizarre complaint; even the three dissenting appeals court judges, in an opinion by Judge Brett Kavanaugh, wrote that “the majority’s order today necessarily means that the government must allow an immediate abortion while Jane Doe remains in government custody.” (The mootness claim itself is shaky: Jane Doe filed her lawsuit as a class action, and she also has claims for damages still pending against the officials who blocked her path.)

I gather that the decision to go to the Supreme Court was extremely controversial within the solicitor general’s office, staffed almost entirely by lawyers who are career civil servants and who serve from one administration to the next, sometimes for decades. Not a single career lawyer signed the solicitor general’s Supreme Court petition, a sure indication that something isn’t right in the office. If the recent trickle of resignations becomes a flood, we can assume that the talented lawyers who left their prestigious positions hadn’t signed up to work in what is becoming a Justice Department outpost of the National Right to Life Committee.

Even if the Supreme Court ignores the administration’s appeal, no one who cares about the rule of law should assume that this story has had a happy ending. Far from it. What we see here is not an ending, but a beginning. We see the future of abortion in America.

What I mean is this: The briefs and motions that Solicitor General Francisco has filed in the case now known as Hargan v. Garza (Eric D. Hargan is the acting secretary of Health and Human Services, and Rochelle Garza is Jane Doe’s court-appointed representative for purposes of the case) are breathtakingly audacious. The political appointees who wrote these documents describe the law of abortion not as it is today (although that’s what they purport to be describing) but as they wish it to be tomorrow — or whenever it is that Justice Anthony M. Kennedy decides to retire and thus creates a crucial vacancy for President Trump to fill.

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Solicitor General Noel J. Francisco, who is endeavoring to make sure the Trump administration can deter other pregnant teenagers in federal custody from terminating their pregnancies.CreditMark Wilson/Getty Images

For example, the appeal filed last week contains these sentences:

“Under this court’s case law, the government may adopt policies favoring life over abortion; it is not obligated to facilitate abortion; and the government acts permissibly when it does not place an undue burden in a woman’s path. Here, the government imposed no undue burden: Ms. Doe contended that the government’s actions as her custodian were obstructing her access to an abortion in violation of the Fifth Amendment, but she could have left government custody by seeking a voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States. Given those options, the government was under no obligation to facilitate Ms. Doe’s abortion.”

Several aspects of this passage stand out. There is no citation pointing a reader to what part of the Supreme Court’s case law validates the administration’s position. That’s not surprising, because the account is partial to the point of being misleading. Presumably, the reference is to the Supreme Court’s 1992 decision Planned Parenthood v. Casey, which adopted the “undue burden” standard for evaluating the constitutionality of restrictions on abortion. The court said that a “substantial obstacle” placed in the path of a woman seeking to terminate a pregnancy before fetal viability creates an “undue burden” on the constitutional right.

The Casey decision did indeed say that the government has an interest in unborn life from the beginning of pregnancy and that it can adopt policies that allow it to express that interest, including seeking to persuade a woman to change her mind and carry the pregnancy to term. But crucially, the Casey decision held that while the government can endeavor to persuade a woman to choose childbirth over abortion, at the end of the day it may not prevent her from choosing otherwise. The distinction between persuade and prevent is central to understanding current abortion law, as Reva Siegel and I argued at length in a law review article published last year.

The Casey decision remains the law of the land, as the Supreme Court made clear last year when it struck down, as an undue burden, medically unnecessary regulations that would have closed most of the abortion clinics in Texas. Justice Kennedy joined Justice Stephen G. Breyer’s majority opinion in that case, Whole Woman’s Health v. Hellerstedt.

The solicitor general now argues that the administration is not preventing Jane Doe from getting an abortion, because she can choose to go back where she came from. That’s ridiculous. First, abortion is not legal in Jane Doe’s unspecified home country. Second, she claims to have fled an abusive home. For all we know, her pregnancy is the result of incest; in any event, she asked officials not to tell her parents that she was pregnant, but they ignored her pleas and told them anyway. And finally, as Judge Patricia Millett wrote in dissent from the appeals court’s earlier 2-to-1 decision that temporarily blocked the abortion, “the government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights. The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution.”

It’s been known for months that President Trump — or, more likely, Vice President Mike Pence — has filled top positions at the Department of Health and Human Services with individuals who have devoted their adult lifetimes to the anti-abortion cause. Scott Lloyd, the man who was in charge of Jane Doe’s fate before the federal courts stepped in, was not on many people’s screens in his low-profile position as head of the department’s Office of Refugee Resettlement, the agency with jurisdiction over unaccompanied minors caught entering the country illegally.

Mr. Lloyd, like so many others now on the public payroll, is a longtime anti-abortion crusader. It is he who now asserts the power to review any abortion decision by a detained minor. Jane Doe’s lawyers submitted as a court exhibit an email from Mr. Lloyd regarding the obligations of the contractors (“grantees”) who house the minors. It was headed: “Grantees Should Not Be Supporting Abortion Services Pre or Post-Release; Only Pregnancy Services and Life-Affirming Options Counseling.”

Mr. Lloyd bases his role, a completely new one for a director of his office, on a policy adopted by the Office of Refugee Resettlement in March that prohibits “any action that facilitates” abortion without “direction and approval from the director.” The prohibited actions include not only giving the minor access to the abortion itself, but also taking her to preliminary doctors’ appointments and to court to get judicial permission in lieu of permission from faraway parents.

The choice of the word “facilitates” in this document is not casual. It appears throughout the administration’s briefs in this case. “This Court has repeatedly made clear that the government generally need not facilitate abortions,” the solicitor general writes in his Supreme Court appeal. Among the precedents cited for the “need not facilitate” rule are those holding that the government need not pay for abortions for women who can’t afford one. But that is a far cry from Jane Doe’s situation. There was never a question of the government paying; the cost of the abortion was borne by a private fund.

The administration put forward its broad view of what it means by “need not facilitate” when it sought a stay of the first judicial order in this case, a decision by Judge Tanya Chutkan of the Federal District Court in Washington, that the administration had to permit the abortion. Seeking immediate review of that order, the administration claimed that “the government’s refusal to facilitate Ms. Doe in obtaining an abortion places no obstacle in her path, much less a significant one, as is required to constitute an undue burden. The government is merely refusing to exercise its custodial responsibilities over unaccompanied minors by taking affirmative steps to proactively assist or enable her in such an endeavor, consistent with its legitimate interest in promoting fetal life and childbirth over abortion.”

That just about says it all. The administration can’t stop adult women from having abortions. It can’t even stop teenagers, who often have their parents’ permission or, failing that, the required permission from a judge. So the administration unleashes its anti-abortion fury on the most vulnerable among us, unaccompanied minors, pregnant and alone, who are here only because they had the gumption or desperation to flee something even worse. Suppose Jane Doe had not been able to get her abortion in time. She would soon be giving birth to a United States citizen. Then what? The administration doesn’t say.

What does it mean to “facilitate” an abortion? It seems to boil down to paperwork: According to one of the administration’s briefs, the government “would have to evaluate and sign approval documents for the procedure; arrange for transportation to the procedure or for transfer of custody to someone who would be authorized to take her; and monitor her health and care after the procedure.” Presumably, the government would make these arrangements joyously if the “procedure” at issue was childbirth. But when it comes to abortion, signing the forms is not only onerous; it also would make the government complicit, in its own eyes, with something it believes to be a grave wrong.

There was another recent case where signing a form was said to create complicity. That was the 2016 case in which religious employers challenged the Affordable Care Act’s requirement of free contraception as part of an employer’s health plan. Noel J. Francisco, now the solicitor general, argued in that case, Zubik v. Burwell, against the requirement on behalf of several clients, including the Roman Catholic archbishop of Washington and an organization called Priests for Life. (The best-known plaintiff in that case, Little Sisters of the Poor, a religious order that runs a network of nursing homes, was represented by another lawyer.) The religiously affiliated organizations sought the total exemption from the mandate that the Obama administration gave to actual churches. The question in the case became whether there was any accommodation that would satisfy the religious groups’ demand and still permit their female employees to obtain birth control on the same terms as other American women. In the end, the groups’ answer was no; even signing a form to opt out of the entire program was a step too far. (The Trump administration has ended the litigation by offering exemptions to employers with religious or just plain “moral” objections to birth control.)

Claims by private parties for not following laws that they believe would make them complicit with evil can be bold, as they were in the contraception case, though are hardly unprecedented. But the argument that the government itself is now making is something novel, a symptom of a world turned upside down. It is the government claiming a right not to “facilitate” a lawful procedure, not to be made complicit in what some politicians and federal bureaucrats regard as evil. It is the government itself claiming a right not to follow the law. The concept is head-spinning.

But who are we to throw stones? Aren’t we all complicit after a fashion? Where were the people in the streets to protest the treatment of Rosa Maria Hernandez, the 10-year-old with cerebral palsy who was stopped at a checkpoint by immigration agents on her way to emergency surgery. Having learned her undocumented status, the agents followed the ambulance and waited outside her hospital room so that she couldn’t somehow escape their clutches. If this had happened in another country, we would have politicians up on soapboxes talking about human dignity. Maybe, since last November, it has become another country: Sheriff Joe Arpaio territory, under rules designed to satisfy the Little Sisters of the Poor.

When Senator Jeff Flake, the Arizona Republican, gave his retirement speech on the Senate floor last month, declaring that “I will not be complicit” in what he described as the country’s loss of moral authority, he posed this question: “When the next generation asks us, why didn’t you do something? Why didn’t you speak up? What are we going to say?” The question lingered in the air. It still does.